Citation Nr: 0215113
Decision Date: 10/28/02 Archive Date: 11/01/02
DOCKET NO. 99-08 353A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to a total rating for compensation purposes based
on individual unemployability.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jonathan E. Taylor, Counsel
INTRODUCTION
The appellant served on active duty from April 1951 to April
1953.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a February 1999 rating decision of the
Montgomery, Alabama, Department of Veterans Affairs (VA)
Regional Office (RO).
On February 21, 2001, a videoconference hearing was held
before Bettina S. Callaway, who is the Board member making
this decision and who was designated by the Chairman to
conduct that hearing, pursuant to 38 U.S.C.A. § 7107(b), (c)
(West 1991 & Supp. 2002). A transcript of that hearing has
been associated with the record on appeal.
REMAND
This case is not yet ready for appellate review. The RO's
efforts have not complied with the instructions contained in
the June 2001 Remand from the Board. See Stegall v. West, 11
Vet. App. 268 (1998). A social industrial survey was
requested by the Board but not conducted.
The Board notes also that the rating criteria for skin
disorders, including scars, were amended on August 30, 2002.
See 67 Fed. Reg. 49,590 (August 30, 2002); 67 Fed. Reg.
58,448 (September 16, 2002); 67 Fed. Reg. 62,889 (October 9,
2002). Because the appellant's combined disability rating
includes a ratig for a scar, the appellant should be provided
notice of the new rating criteria. See Karnas v. Derwinski,
1 Vet. App. 308, 312-13 (1991).
Accordingly, this case is REMANDED for the following:
1. The RO must review the claims file and
ensure that all notification and
development action required by 38 U.S.C.A.
§§ 5102, 5103, and 5103A (West 1991 &
Supp. 2002) are fully complied with and
satisfied. See also 66 Fed. Reg. 45620-32
(August 29, 2001) (to be codified at 38
C.F.R. § 3.159); Quartuccio v. Principi,
16 Vet. App. 183 (2002).
2. The appellant should be afforded a VA
social and industrial survey to assess
the veteran's educational history,
employment history, and day-to-day
functioning. An opinion as to the effect
of the residuals of the veteran's service
connected head injury in service on
activities generally required in
employment situations for which the
appellant is qualified should be included
in the report. The Board notes that the
service connected residuals include
status post head injury with bony defect
of the left frontal area, rated 30
percent disabling from November 1987;
retention of metallic foreign body, right
frontal lobe region with syncopal
episodes, rated 20 percent disabling from
May 1993; and scar, left frontal
craniotomy defect, rated 10 percent from
February 2001. The factors and objective
findings supporting that opinion should
be discussed fully. Send the claims
folder to the examiner for review. A
written copy of the report should be
inserted into the claims folder.
3. Thereafter, the RO should readjudicate
this claim. If the benefit sought on
appeal remains denied, the appellant and
the appellant's representative, if any,
should be provided a supplemental
statement of the case (SSOC). The SSOC
must contain notice of all relevant
actions taken on the claim for benefits,
to include a summary of the evidence and
applicable law and regulations considered
pertinent to the issue currently on
appeal, including the amended regulations
for skin disorders. An appropriate period
of time should be allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2002) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2002), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2001).